Holding

Section 213 of the Indian Succession Act is not limited to Christians but applies to other religions as well, and therefore is not discriminatory.

Summary

The petitioners, Indian Christians, challenged the constitutionality of Section 213(2) of the Indian Succession Act, 1925, as amended by the Kerala Amendment Act, 1986, arguing that the compulsory probate requirement applied only to Christians and was discriminatory. Two writ petitions (C No. 137 of 1997 and C No. 674 of 1998) sought to strike down the provision and to obtain relief for a beneficiary of a Will concerning property outside Kerala. The Court examined the scope of Section 213(1) and (2) and its interaction with Section 57, noting that the probate bar applies to Muslims, Hindus (in certain territories), Parsis and others, not exclusively to Christians. It held that the provision is a procedural rule of evidence applicable to several religions and therefore does not violate the equality clause. Consequently, the petitions were dismissed with no costs awarded.

Issues considered

Whether Section 213(2) of the Indian Succession Act, 1925, as amended by the Kerala Amendment Act, 1986, is discriminatory against Indian Christians.
Whether the requirement of probate for establishing rights as executor or legatee under a Will is constitutionally valid.
What is the proper scope and applicability of Sections 213(1), 213(2) and 57 of the Indian Succession Act with respect to different religions and territories.

Legislation cited

Indian Christian Estates Administration Act VII of 1901
Indian Succession Act, 1925s. 211, s. 213, s. 57
Indian Succession (Amendment) Act, 1962s. 213
Indian Succession (Kerala Amendment) Act, 1986s. 213(2)

Subjects

probateIndian Succession ActSection 213discriminationequality clausepersonal lawChristianKerala amendmenttestamentary successionconstitutional law

Judgment

CLARENCE PAIS AND ORS. A
v.

* UNION OF INDIA

FEBRUARY 22, 2001

[S. RAJENDRA BABU AND R.C. LAHOTI, JJ.] B

Indian Succession Act, 1925 :
.oi,
Section 213(2) (as amended by KeralaAmendment Act, 1986)--Scope
and ambit of-Probate ofWill-Reqidrement of-Applicability-Held: S. 213
is not only applicable to Christians but also to other religions-Hence, it is not c
discriminatory-Indian Succession (KeralaAmendment) Act, 1986.

In Writ Petition (C) No. 137 of 1997 the petitioner was an Indian
Christian and citizen of India. Under Section 213 of the Indian Succession
Act, 1925 there was a compulsory requirement of probating a Will to
D
establish the right of an executor or a legatee under a Will and was
restricted to Indian Christians and certain other categories of persons
professing Hindu and other faiths. The contention of the petitioner was
that there was no rational or discernible basis for making the require-
ment of probate for only ~limited section of Indians citizen necessary such
as Indian Christians excluding other sections . E
.....
In Writ Petition (C) No. 674 of 1998 the petitioner was an Indian
Christian residing in the State of Kerala. The petitioner was the sole
beneficiary of a registered Will in respect of a property situated outside the
State executed by his aunt who was a Christian. The petitioner contended
F
that as per the Indian Succession (Kerala Amendment) Act, 1986 a Chris-
tian residing in the State of Kerala owning property therein if died after
~- making a Will, the legatee thereto need not to obtain a probate in terms of
Section 213 of the Indian Succession Act before establishing his right,
while those residing in other parts of the country were required to do so.
G
Dismissing the petitions, the Court

HELD : 1. The scope of Section 213(1) of the Indian Succession Act,
...,.- 1925 is that it prohibits recognition of rights as an executor or a legatee
under a Will without production of a probate and sets down a rule of
evidence and forms really a part of procedural requirement of the law of H
43
44 SUPREME COURT REPORTS [2001] 2 S.C.R.

A forum. Section 213(2) of the Act indicates that its applicability is limited
to cases of persons mentioned therein. The bar that is imposed by this
Section is only in respect of the establishment of the right as an executor
or a legatee and not in respect of the establishment of the right in any
other capacity. The Section does not prohibit the Will being looked into
for purposes other than those mentioned in the Section. The bar to the
B
ei>tablishment of the right is only for its establishment in a court of justice
and not its being referred to in other proceedings before administrative or
other Tribunal. The Section is a bar to everyone claiming under a Will,
whether as plaintiff or defendant, if no probate or Letters of Administra-
tion is granted. The effect of Section 213(2) of the Act is that the require-
c ment of probate or other representation mentioned in sub-section (1) for
the purpose of establishing the right as an executor or a legatee in a court
is made inapplicable in case of a Will made by Muhammadans and in the
case of Wills coming under Section 57(c) of the Act. [50-B-E]

2. A combined reading of Sections 213 and 57 of the Act would show
D that where the parties to the Will are Hindus or the properties in dispute
are not in territories falling under Section 57(a) and (b), sub-section (2) of
Section 213 of the Act applies and sub-section (1) has no application. As a
consequence, a probate will not be required to be obtained by a Hindu in
respect of a Will made outside those territories or regarding the immov·
E able properties situated outside those territories. The result is that the
contention put forth by the petitioners that Section 213(1) of the Act is
applicable only to Christians and not to any other religion is not correct.
It cannot be said that the Section is exclusively applicable only to Chris·
tians and, therefore, it is discriminatory. [50-G-H; 51-A; CJ
F B. Venkataramana v. State of Madras, AIR (1951) SC 229; Staie of
Rajasthan v. Thakur Pratap Singh, AIR (1960) SC 1208; Ms. Hem Nolini
Judah v. Mrs. Isolyne Sarojbashini Bose, [1962] Supp. 3 SCR 294; Ahmedabad
Women Action Group (AWAG) v. Union of India, [1997) 3 SCC 573;
Sheokaransingh v. DaulaJram, AIR (1955) Raj. 201; Mary Sonia Zachariah v.
G Union of India, (1995) 1 KLT 644 and Preman v. Union of India, (1998) 2
KLT 1004, referred to.

CIVIL ORIGJNAL JURISDICTION : Writ Petition (C) No. 137 of
1997.

H (Under Article 32 of the Constitution of India.)
CLARENCE PAI v. U.0.1. [RAJENDRA BABU, J.] 45

- WITH

Writ Petition (C) No. 674 of 1998.
A

S.N. Bhat, Romy Chako, Rajiv Mehta, T.C. Sharma, Ajay Sharma, P.
Parmeswaran and B. Krishna Prasad for the appearing parties.
B
The Judgment of the Court was delivered by

RAJENDRA BABU, J. These two writ petitions have been filed chal-
lenging the validity of Section 213 of the Indian Succession Act, 1925
(hereinafter referred to as 'the Act'] as unconstitutional and to restrain the
Union of India from enforcing the provisions thereof against the Indian c
Christians.

Jn Writ Petition (C) No. 137 of 1997, petitioner No. 1 is an Indian
Christian and a citizen of India. He has been in the legal profession for about
48 years, and on account of experience gained in havmg appeared in many
probate cases and had occasions to obtain probate of his father's Will, his D
experience has made him decide to file this writ petition. Petitioner No.2 is
a Catholic Association of Dakshina Kannada, Kamataka. It is submitted that
the effect of taking out probate of a Will is to establish the genuineness or
validity of the Will and the grant of prqbate is not a condition precedent to
the vesting of the estate in the executor in light of the provisions of Section E
211 of the Act. Section 211 of the Act provides for vesting of the property
in the executor or administrator, as the case may be, of a deceased person in
his legal representative for all purposes. However, when the deceased is a
Hindu, Muhannnadan, Buddhist, Sikh, Jairia or Parsi nothing contained in the
Act shall vest in an executor or administrator any property of tl1e deceased
person, which would otherwise have passed by survivorship to some other F
person. Section 213(1) requires that no right as executor or legatee under a
Will can be established in a Court of Justice without obtaining probate or
letters of administration of the Will under which such right is sought to be
established. Section 57 of the Act makes it clear that the provisions of that
part which are set out in Schedule III subject to the restrictions and modifi- G
cations specified therein, shall apply to all Wills and codicils made by any
Hindu, Buddhist, Sikh or Jaina after the first September, 1870 who are
originally residents in the jurisdiction of the High Courts of Judicature at
~··
Madras and Bombay or subject to the jurisdiction of Lieutenant Governor of
Bengal and to all such Wills and codicils made outside those territories and
/
H
46 SUPREME COURT REPORTS [2001) 2 S.C.R.

A limits so far as relates to immovable property situate within those territories
or limits and to all Wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina on or after the first day of January, 1927 to which those provisions are
not applied by clause (a) and (b), provided that marriage shall not revoke any
such Will or codicils. In view of the aforesaid provisions, there is compulsory
requirement of probating a Will to establish such a right by virtue of the
B
provisions of Section 213 which is made applicable and is restricted to Indian
Christians and certain other categories of persons professing Hindu and other
faiths. The contention of the petitioner is that there is no rational or discern-
ible basis for making the requirement of probate necessary for only a limited
section of Indian citizens such as Indian Christians excluding other sections.
c The Indian Succession Act, 1925 repealing the Indian Succession Act, 1865
was enacted by Parliament with a view to consolidate the law applicable to
intestate and testamentary succession in India and, as a consequence no
intentional change in the law was made at that stage. While no distinction is
made with respect to establishing a right to property of a person dying
·~
intestate belonging to different communities and professing different faiths,
D
Christians alone are subjected to this requirement.

In Writ Petition (C) No. 674 of 1998 petitioner is an Indian Christian
who belongs to Roman Catholic community residing in the State of Kerala.
The petitioner was the sole beneficiary of a registered Will dated 15.12.1986
E executed by his aunt Mrs. Lissa Jos Arakal owner of a flat No. 5, Ashiana
Apartment, Pitam Pnra, Delhi. She was a Christian and she remained unmar-
ried till her death. Out of love and affection towards the petitioner she
executed a Will on 15.12.1986 bequ~athing her entire rights in respect of the
said flat in favour of the petitioner. She died on 9.8.1991 at Lourdes Hospital,
Kochi. The petitioner received a letter in August 1993 from the Secretary of
F
Mis Loyola Co- operative Housing Society, Ashiana Apartments, Road No.
41, Pitam Pora, Delhi stating that the committee of the Society had decided
not to hand over the flat to him without any court direction. The petitioner
also informed the Society not to transfer the said flat to any one else other
than himself. However, he received a reply from the Society stating that Mr.
G Barley Arakal is the nominee of the testatrix as per their record and as such
since there is a dispute regarding the property !he stalus quo will be main-
tained until further orders. It is stated that the petitioner is not in a position
to establish his legal right over !he property in question or to obtain any relief
from the court on account of the fact that he is a Christian who is bound by
the restriction provided under Section 213 of the Act and since Section 213
H
CLARENCE PAIS v. U.0.1. [RAJENDRA BABU, J.] 47
of the Act comes.in the way of exercising his right, the petitioner is challeng- A
ing the validity of the said provision for identical reasons as set forth in the
,l
connected writ petition. It is also brought to our notice in these proceedings
that in view of the harsh procedure contemplated in the provisions under
challenge the Kerala Legislature has enacted an amendment known as Indian
Succession (Kerala Amendment) Act, 1986 dated 14.3.1997 by which
sub-section (2) of Section 213 of the Act has been amended to the effect
B
that after the word "Muhammadans" the words "or Indian Christians"
shall be inserted. It is thus evident from this provision that it would apply to
the State of Kerala in respect of the property held by the deceased but it is
not clear whether the amendment would apply to the property of a testator
who belongs to the State of Kerala in respect of the property situated outside c
the State of Kerala, as in the present case. The petitioner points out the
anomaly arising in the law. Thus a Christian residing in the State of Kerala
owning property therein if dies after making a Will, the legatee thereto need
not to obtain a probate in terms of Section 213 of the Indian Succession Act
before establishing their right, while those residing in other parts of the
D
country are required to do so. The anomaly pointed out by the petitioner is
that the Will is made in respect of a property situate in some part of the
country other than Kerala.

The defence taken by the Government of India is that the members of
the Christian community are not put to any discrimination and they are E
-..... compelled to obtain probate or letters of administration of the Wills only by
way of rule of evidence and procedure and it is intended to provide for a right
of means of establishing the genuineness of a Will conclusively. So far as
marriage and divorce, infants and minors, adoption, wills, intestacy and
succession, joint family and partition and all matters in respect of which parties
F
in judicial proceedings were immediately before the commencement of the
Constitution subject to their personal law, it is open to the State Legislatures
to undertake any legislation of the nature of Section 213 of the Act. The State
Governments bring in changes in personal law from time to time as per the
social conditions prevailing in the particular States. Therefore, the amend-
ment made in the State of Kerala would not discriminate the persons residing G
in other parts of the country. The contention is that the classification has
achieved social acceptance as is evident from the fact that it has been in
existence in the statute book for a quite long time and it is not established
.....
that how such classification in the statute suffers in any manner from discrimi-
nation, and the provisions being procedural in nature are intra vires to the H
48 SUPREME COURT REPORTS [2001] 2 S.C.R.

A Constitution. It is further submitted that the Central Government has been
consistently following a policy of non-interference in the personal laws of the
minority communities unless the necessary initiative for amendments or ~

repeal from a majority or sizable cross-section of the community arises.

On several representations having been made in this regard by the
B Christian community in India amendment was sought to be introduced by way
of a Bill to amend Section 213 of the Act to bring Christians at par with other
communities who are not required to obtain probate. The grievance of the
petitioners in these cases, it is stated, is well brought out in the 'Statement
of Objects and Reasons' dated May 13, 1942 in respect of proposed amend-
c ment of Section 213 which reads as under:-

"Prior to 1901, Indian Christians laboured under a serious grievance,
namely, that they were compelled to obtain probate of wills and
letters of administration with liability to pay death duties on the death
of every owner of property under the Indian Succession Act X of
D 1865, while Hindus and Muslims were exempt from the provisions
of the Act. They have since been partially relieved by being placed
practically on the same footing as their non-Christian countrymen in
cases of intestacy under the Indian Christian Estates Administration
Act VII of 1901; but where the deceased has left a will, they are still
bOllild to obtain probate and pay probate duty as required by section
E
213 of the Indian Succession Act XXXIX of 1925, a section which
does not apply to will of Hindu, Buddhists, Sikhs or Jains except "'
;
where such wills are of the class specified in clauses (a) and (b) of
section 57 and to all wills of Muhammadans.

F The necessity of making wills has been imposed upon Indian
Christians by the provisions of the Indian Succession Act as to
intestate succession being made applicable to them, which are far in
advance of their usages and are derived from English law. It is felt
as a serious hardship that in such circwnstances Indian Christians
should be compelled to obtain probate and should be made liable to •
G pay death duties while their non-Christian countrymen to whom wills
are a luxury are exempt. From this injustice they should be relieved
by placing Indian Christians on the same footing as Hindus and
Muhammadans in Sections 213 and 370 of the Act." ~

H Sections 57 and 213 of the Act provide as follows :
I '·
CLARENCE PAIS v. U.0.1. [RAJENDRA BABU, J.] 49
"57. Application of certain provisions ofPart to a class of wills mack A
• ),
by Hindus, etc. Tue provisions of this Part which are set out in
Schedule III shall, subject to the restrictions and modifications speci-
fied therein, apply -

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina, on or after the first day of September, 1870, within the terri- B
tories which at the said date were subject to the Lieutenant-Governor
of Bengal or within the local limits of the ordinary original civil
jurisdiction of the High Courts of Judicature at Madras and Bombay;
and

(b) to all such wills and codicils made outside those territories and c
limits so far as relates to immovable property situate within those
territories or limits; and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina, on or after the first day of January, 1927, to which those
D
provision:

Provided that marriage shall not revoke any such will or codicil.

"Section 213. Right as executor or legatee when established. (1) No
right as executor or legatee can be established in any Court of Justice,
unless a Court of competent jurisdiction in India has granted probate
E
of the will under which the right is claimed, or has granted letters of
administration with the will or with a copy of a authenticated copy
of the will annexed.

(2) This section shall not apply in the case of the wills made by
F
Muhammadans, and shall only apply-

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina
where such wills are of the classes specified in clauses (a) and (b) of
section 57; and

(ii) in the case of wills made by any Parsi dying, after the commence-
G
ment of the Indian Succession (Amendment) Act, 1962, where such
wills are made within the local limits of the ordinary original civil
... jurisdiction of the High Courts at Calcutta, Madras and Bombay and
where such wills are made outside those limits, in so far as they relate
to immovable property situate within those limits. " H

•
J

50 SUPREME COURT REPORTS [2001] 2 S.C.R.

A Hindu Wills Act, 1870 is the forerunner of Section 57 of the Act. This Section
without the proviso together with Schedule III except Article (5) is Section 2
of Hindu Wills Act, 1870 as amended by Section 154 of the Probate and
Administration Act. 1881. The proviso is proviso to Section 3 of the Hindu
Wills Act. Thus, the scheme of the said enactment is retained in Section 57 of
the Act.
B
The scope of Section 213(1) of the Act is that it prohibits recognition of
rights as an executor or legatee under a will without production of a probate
and sets down a rule of evidence and forms really a part of procedural require-
ment of the law of forum. Section 213(2) of the Act indicates that its applica-
C bility is limited to cases of persons mentioned therein. Certain aspects will have
to be borne in mind to understand the exact scope of this section. The bar that
is imposed by this section is only in respect of the establishment of the right
as an executor or legatee and not in respect of the establishment of the right
in any other capacity. The section does not prohibit the will being looked into
D for purposes other than those mentioned in the section. The bar to the estab-
lishment of the right is only for its establishment in a court of justice and not
its being referred to in other proceedings before administrative or other Tribu-
nal. The section is a bar to everyone claiming nuder a will, whether as plaintiff
or defendant, if no probate or Letters of Administration is granted. The effect
of Section 213(2) of the Act is that the requirement of probate or other
E
representation mentioned in sub-section(!) for the purpose of establishing the
right as an executor or legatee in a court is made inapplicable in case of a will
made by Muhammadans and in the case of wills coming under Section 57(c)
of the Act. Section 57(c) of the Act applies to all wills and codicils made by
any Hin~n, Buddhist, Sikh or Jain, on or after the first day of January, 1927
F which does not relate to immovable property situate within the territory for-
merly subject to the Lieutenant-Governor of Bengal or within the local limits
of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and
Bombay, or in respect of property within those territories. No probate is
necessary in the case of wills by Muhammadans. Now by the Indian Succession
G [Amendment] Act, 1962, the section has been made applicable to wills made
by Parsi dying after the commencement of the 1962 Act. A combined reading
of Sections 213 and 57 of the Act would show that where the parties to the will
are Hindus or the properties in dispute are not in territories falling under
Section 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-
section(!) has no application. As a consequence, a probate will not be required
H
CLARENCE PAIS v. U.0.1. [RAJENDRA BABU, J.] 51
--"" to be obtained by a Hindu in respect of a will made outside those territories A
A_ or regarding the immovable properties situate outside those territories. The
result is that the contention put forth on behalf of the Petitioners that Section
, . 213(1) of the Act is applicable only to Christians and not to any other religion
is not correct.

B
We have shown above that it is applicable to Parsis after the amendment
of the Act in 1962 and to Hindus who reside within the territories which on
1.9.1870 were subject to the Lt. Governor of Bengal or to areas covered by ·
original jurisdiction of the High Courts of Bombay and Madras and to all wills
made outside those territories and limits so far as they relate to immovable
property situate within those territori~s and limits. If that is so, it cannot be c
said that the section is exclusively applicable only to Christians and, there-
fore, it is discriminatory. The whole foundation of the case is thus lost. The
differences are not based on any religion but for historical reasons that in
British Empire in India, probate was required to prove the right of a legatee
or an executor but not in Part ''B" or "C" States. That position has continued
D
even after the Constitution has come into force. Historical reasons may justify
differential treatment of separate geographical regions provided it bears a
reason and just relation to the matter in respect of which differential treatment
is accorded. Unifomrity in law has to be achieved, but that is a long drawn
~
process. Undoubtedly, the States and Union should be alive to this problem.
-,,.....
Only on the basis that some differences arise in one or other States in regard E
to testamentary succession, the law does not become discriminatory so as to
' be invalid. Such differences are bound to arise in a federal set up.

The learned counsel for the Petitioners relied on the decisions in B.
Venkataramana v. State ofMadras & Anr., AIR (1951) SC 229, Sheokaransingh F
v. Daulatram, AIR (1955) Raj. 201, State of Rajasthan & Ors. v. Thakur
Pratap Singh, AIR (1960) SC 1208, Mrs. Hem Nolini Judah v. Mrs. Isolyne

- Sarojbashini Bose, [1962] Supp. 3 SCR 294, Mary Sonia l.achariah v. Union
of India, (1995) 1 KLT 644, Ahmedabad Women Action Group (AWAG) &
Ors. v. Union of India, [1997] 3 SCC 573 and Freman v. Union of India,
(1998) 2 KLT 1004. However, in the light of the above conclusion, it is
unnecessary to refer to those decisions though some of them may have bearing
G

in analysing and understanding the scope of the provisions which are made
~
applicable exclusively to Christians as it happened in the case of Section 118
of the Act or in the case of the Indian Divorce Act. Therefore, we have not
adverted to any one of these provisions. If Christians alone had been discrimi- H
/-

52 SUPREME COURT REPORTS [2001] 2 S.C.R.
A nated against by treating them as a separate class, we think the argument could
have been understood and merited consideration. ~

In that view of the matter, we do not think there is any merit in these
petitions and the same stand dismissed accordingly. No costs.
..
B V.s.s. Petitions dismissed.
•,:

-.....